Steven Moore (a pseudonym) v The King [2024] HCATrans 42 (5 June 2024)

Last Updated: 6 June 2024

[2024] HCATrans 042

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M23 of 2024

B e t w e e n -

STEVEN MOORE (A PSEUDONYM)

Appellant

and

THE KING

Respondent

GAGELER CJ
EDELMAN J
STEWARD J
GLEESON J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 JUNE 2024, AT 10.02 AM

Copyright in the High Court of Australia
MR C.T. CARR, SC: If the Court pleases, I appear with my learned friends MR J.R. MURPHY and MR P.D. COLERIDGE on behalf of the appellant. (instructed by Angus Cameron Lawyers)

MR B.F. KISSANE, KC: If the Court pleases, I appear with my learned friend MR J.P. O’CONNOR on behalf of the respondent. (instructed by Office of Public Prosecutions (Vic))

GAGELER CJ: Thank you. Yes, Mr Carr.

MR CARR: The Court will perceive that embedded within our single ground of appeal there are two contentions of error, the first relating to the standard of error applied by the Court of Appeal, and the second concerning the Court of Appeal’s assessment of the danger of unfair prejudice. Starting logically with the first of those errors, it is convenient for us to start with the approach taken by the Court of Appeal to the finding of error.

One can see in the judgment of the Court of Appeal detailed explication of the House standard at paragraph 52 and, again in respect of section 137, at paragraph 178. The dispositive conclusion of the court is expressed in terms appropriate to that standard at paragraph 6(b) on core appeal book page 49. The dispositive conclusion is expressed in these words:

it was open to the judge to decide not to exclude the evidence pursuant to s 137 –

Again, in further explanation of their Honours’ reasons, at core appeal book page 94, the language of House is deployed in paragraph 187 to explain the court’s reasons for considering that it was “open to the trial judge”.

GAGELER CJ: And what do we make of paragraph 188?

MR CARR: In our respectful submission, not very much. It cannot be, as the respondent seems to contend, an alternative application of the Warren v Coombes standard because there is no mention anywhere in the judgment of that that standard at any other point, or indeed, any uncertainty expressed in their Honours’ reasoning as to the applicable standard of their own. So, it would be a curious thing to apply an otherwise unmentioned standard of error in a passing ‑ ‑ ‑

EDELMAN J: What does the word “correct” mean?

MR CARR: What it means is, in our submission, this. Their Honours took section 137 to be a discretionary power – that is, a power which permitted of a range of permissible outcomes – and paragraph 188 is a conclusion that they would have exercised the discretionary power in the same way.

It is effectively the completion of the task that their Honours describe is involved in House at paragraph 52 of the judgment that, if error is found, the appellate court then exercises the discretion for itself. The expression “for completeness” that commences paragraph 188 indicates that all the court is there doing is completing the appellate task on an appeal to which the standard in House is applicable by indicating that court’s view of where within the realm of permissible decisions the court would exercise its own discretion.

EDELMAN J: But, if that is the case, then at 188 the court is not showing any deference, to use one expression, or allowing any latitude exercising any judicial restraint. The court must at 188 then be saying, put in the position of the trial judge, we would have done the same thing.

MR CARR: Within the realm of latitude, in effect, the Court of Appeal is saying, we would have exercised the discretion in this way. That is not exhaustively the only way that the discretion could have been exercised because their Honours are clear in their repeated descriptions of section 137 as a discretionary exercise. Can we take your Honours to the passages ‑ ‑ ‑

EDELMAN J: So, just to be clear, if you are using the word “discretion”, there are two different types of discretion that are involved. There is one question of discretion as to all of the factors – the exercise, the weighing‑up that the trial judge goes through when answering the instant question before them. There is the second question, which is whether any latitude, or restraint, or discretion, is exercised by the appellate court when they are looking at that primary judge’s consideration. Now, it is that latter question that is before us, is it not?

MR CARR: Yes.

EDELMAN J: And in relation to that latter question, paragraph 188 is saying that no latitude need be given because, whatever it may be, the exercise that was performed by the primary judge was correct.

MR CARR: In our submission, no. Can I explain why? Their Honours describe section 137 as itself involving a discretionary exercise. That is, in this context, an exercise in which there are a realm of permissible outcomes, no single answer being uniquely right. When their Honours say at paragraph 188 that in their view the trial judge was correct not to exclude the evidence pursuant to section 137, they are merely determining how they would exercise the discretion, standing in the shoes of the trial judge within that realm of permissible outcomes.

It is not, in our submission, a consideration of the second stage that your Honour Justice Edelman has just put to me. Rather, it is a consideration of how they would exercise the discretion within, as I have said, the realm of permissible outcomes that they perceive to be available.

EDELMAN J: The realm of permissible outcomes being exclude or not exclude?

MR CARR: Yes, but being a decision that is discretionary, and therefore – although it is binary – one about which one can not say that there is a single legally available result. Can we take your Honours very briefly to the passages in the judgment where their Honours describe the section 137 as a “discretion”. In paragraph 4(b) of core appeal book page 48, their Honours say:

secondly, that if it was otherwise admissible, it ought to be excluded in the exercise of the judge’s discretion under s 137 of the Evidence Act –

Then, at page 56, paragraph 31:

After dealing with the question of whether the evidence ought to be excluded in the exercise of the s 137 discretion, the judge turned to admissibility under s 65.

So, the court is there drawing a distinction between a question about admissibility, as is the case when section 65 is applied, and, on the other hand, the nature of section 137, which their Honours describe as a “discretion”.

GAGELER CJ: Mr Carr, we are concerned with the standard of review on appeal. Could you take us, or at least refer us, to the relevant appeal provision. We are concerned here not with an appeal against conviction, we are concerned with an interlocutory appeal.

MR CARR: Yes. Can we take your Honours to the appeal book, it commences at page 18. We do wish to take your Honours to some of the extrinsic materials to make the point about the statutory purpose.

GAGELER CJ: Just tell us the Act and the section, please.

MR CARR: The Criminal Procedure Act 2009 (Vic), and the section is section 295, which is at page 22 of the joint book of authorities.

GLEESON J: Which version should we be using? The 6 September 2023 or the 11 October 2023?

MR CARR: There has been no change to these provisions. The version in the joint book of authorities is the 11 October 2023 version, but there has been no amendment of these provisions at any material time. Looking at the provision, if we can take your Honours through it, one sees, at page 22 of the joint book of authorities, in section 295(2) a “right” to appeal which is fettered by a requirement for the Court of Appeal to give the party leave, and in subsection (3) a further fetter that:

A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies –

as to, in effect, the significance of the decision for the purpose of the trial. That criterion being differentially expressed in paragraphs (a) and (b) depending upon whether the decision concerns the admissibility of evidence. There is as further fetter in paragraph (c) concerned with fragmentation and, in effect, prevents certification if the party is at fault for failing to identify the issue at a sufficiently early stage.

One sees in the certification requirement, an assurance by the trial judge that the decision is so significant as to justify it being the subject of an interlocutory appeal, and it is of at least some passing moment that the significance in subsection (3)(b) must be that it is:

of sufficient importance to the trial to justify it being determined –

that is, the interlocutory decision itself being determined:

on an interlocutory appeal –

That seems to tend towards the appellate court determining the interlocutory decision for itself. One then passes to section 296, which provides a power for the appellate court to review the refusal of certification. In subsection (4)(b):

the Court of Appeal—

. . .

(b) if satisfied as required by section 297, may give the applicant leave to appeal against the interlocutory decision.

Suggesting that the appellate court is to reach its own state of satisfaction as to certification if a refusal to certify is the subject of review. Then one finds, in section 297, the test for leave to appeal, and the statute requires the appellate court to determine as a separate question anterior to the correctness of the decision under appeal whether it is in the “interests of justice” to grant leave and thus to permit an appeal to proceed, including having regard to, in paragraph (a), effectively, the disadvantageous consequence of fragmentation, and, in paragraph (b), effectively, the beneficial effects of an interlocutory appeal. Most pertinently, in (i), that it may:

render the trial unnecessary –

In (iv), that it may:

reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial –

STEWARD J: Now, on your argument about the correctness standard, the Court of Appeal could still consider House‑like considerations by reference to (b)(iv), could it not?

MR CARR: Yes, the very point we make is that the statutory regime compels the appellate court to consider the desirability of an appeal, most pertinently by balancing the undesirable consequence of fragmentation against the desirable objective of correcting error before it can merge into an acquittal which cannot be the subject of an appeal, or a conviction which might need to be overturned on an appeal against conviction. The legislature has placed consideration of those issues which might otherwise conduce to appellate restraint or deference in the separate test of leave.

STEWARD J: Is there any potential overlap between this procedure and the procedure in Division 5 for a case stated on a question of law? I note that in Division 5 the question can arise before the trial.

MR CARR: The essential difference between a case stated under the Victorian jurisprudence is that a case stated can only concern a pure question of law, cannot involve the appellate court in any consideration of the facts of the case; the appellate court has no power to draw inferences or find facts under the procedure that follows from section 302 and subsequent.

It is not an alternative procedure except in a most unusual set of circumstances when all that arises is a pure question of law. The most recent consideration of those provisions in Victoria was in a case called Chief Commissioner of Police v Crupi, and my learned juniors will give me the citation and will provide it to your Honours a little later, if we might.

STEWARD J: Can I ask you just another question whilst I am interrupting you. Your standard of appellant review is correctness – if there is subsequently a conviction appeal, do you accept, as the Director submits, that on a conviction appeal that ruling can be reviewed again on a correctness standard?

MR CARR: Yes.

STEWARD J: So, the possibility of inconsistent decisions under Division 4, and then subsequently on a conviction appeal, arises regardless of which one of you is right.

MR CARR: It arises only in a purely theoretical concept, on our interpretation, but in a practical and real way on the respondent’s interpretation.

STEWARD J: Is that the same thing as saying it is more unlikely that there will be inconsistency?

MR CARR: Yes.

STEWARD J: Okay.

MR CARR: Exceptionally unlikely on our interpretation because if the decision has been made on the correctness standard, it is implausible to think that an appellate court faced with the same facts will come to a different view. Can I give your Honours ‑ ‑ ‑

GAGELER CJ: In your submission, as I understand it, section 297(1)(b)(iv) requires regard to be had in the decision to grant or refuse leave to appeal, regard to be had to how this sort of error would play out in an appeal against conviction under section 276. Is that right?

MR CARR: Yes, and therefore conduces to an identity of standards applicable on the two appeals.

GAGELER CJ: Thank you.

MR CARR: Can I give your Honour Justice Steward the citation that we indicated we would. Crupi is unreported, Chief Commissioner of Police v Crupi [2023] VSCA 245.

STEWARD J: Thank you.

MR CARR: Can we take your Honours to the dispositive provision of the interlocutory appeal regime, which is section 300(1) indicates, in our submission, or provides the indicia of an appeal by way of rehearing on the evidence before the trial court and such additional evidence as the Court of Appeal permits to be adduced. In subsection (2), one sees the powers of the Court of Appeal which are, again, consistent with the hallmarks of an appeal by way of rehearing, an ability to:

affirm or set aside the interlocutory decision; and

(b) if it sets aside the interlocutory decision—

(i) may make any other decision that the Court of Appeal considers ought to have been made; or

(ii) remit the matter –

and pursuant to subsection (3), if it remits the matter:

it may give direction concerning the basis on which the matter is to be determined –

Which are binding on the trial court. We make the broad – and we apprehend from the submissions – uncontentious submission that an interlocutory appeal under this regime is an appeal by way of rehearing, the incidence of which include the fetters of leave and certification. Those two fetters directed to matters which would otherwise fall for consideration under the rubric of restraint or deference and might otherwise conduce to an appellate standard such as House, which incorporated that restraint or deference, which, in this case, is given effect and addressed by the fetters of leave and certification.

Can we then amplify the submission that we made in response to your Honour the Chief Justice’s question about 297(1)(b)(iv) reducing:

the likelihood of a successful appeal against conviction –

and our submission that statutory purpose conduces to the same standard being applicable at both appellate stages, that is, an interlocutory appeal and a final appeal against conviction.

BEECH-JONES J: Sorry, just on that, there are actually three stages: there is the primary judge, the decision to grant leave, and then if you grant leave. I thought you agreed with me that at the second stage, whether you grant leave, you could approach that question in a way analogous to House by saying, is there some apparent error of principle in the approach below, because that would also serve to reduce the likelihood of a successful conviction. And if you took that approach, there might be other factors that say we do not need to grant leave and go into this.

MR CARR: I did agree with your Honour, and the point that I – maybe inelegantly – sought to make in the last submission that we made was that those considerations tend in favour of our submission that the place for deference and restraint is at the leave stage, and that those considerations do not provide any reason for providing or applying a different standard on an interlocutory appeal, on the one hand, and on a final appeal against conviction, on the other hand.

EDELMAN J: Well, they are neutral, really, are they not? I mean, there could be some interlocutory issues to which restraint is applied and some interlocutory issues to which restraint is not applied, but the discretionary question at the leave stage applies to both of those.

MR CARR: Yes, at the leave stage.

EDELMAN J: Yes.

MR CARR: Yes, but when one is assessing, as this Court needs to, in order to determine whether the correct approach is the application of the correctness standard when determining whether there is error, or alternatively, the application of the House standard applied by the court below, those considerations play no part in tending in favour of the House standard because the legislature has provided for them to be taken into account at the leave stage in a quite discrete way, and it would disrupt the balance struck by the statute to then take them into account also, and discretely in determining the standard of error to be applied.

EDELMAN J: I am not sure that is right. I mean, if, for example, the question of whether or not an adjournment ought to have been given very shortly before the trial for urgent reasons, you would engage those same restraint‑based questions in deciding whether leave is to be given, but as to the ultimate question, it might still be a House v The King‑type question. In other words, the exercise you are performing at the leave stage is neutral as to whether or not you have a House v The King or a correctness standard at this stage that the appellate court answers the ultimate question.

MR CARR: In our submission, the reason that one would apply House to the example that your Honour has just provided is because a decision as to whether to grant an adjournment is quintessentially discretionary and therefore only amenable to appeal subject to the House standard. We do not take issue with the notion that. If the underlying decision is one which is discretionary in nature, one would apply House because, as House itself says, it is necessary in order to find error to identify in a discretionary decision one of those features which is set out in the frequently‑cited passage from House.

BEECH-JONES J: Mr Carr, does this encapsulate what you are saying? Ultimately, it is the nature of the underlying decision, and you say that it is correctness standard because a decision to admit admits there is only one correct outcome. But you are taking us to these provisions to, as it were, respond to a suggestion about what all the fragmentation and inconvenience that might be caused by what your opponents say would occur if you did apply that standard. Is that where we get to?

MR CARR: Yes, precisely.

EDELMAN J: And that those provisions are neutral as to the answer to the ultimate question as to whether or not provisions such as 137 are subject to correctness or approach with judicial restraint.

MR CARR: They are neutral in the sense that where the underlying decision is one to which there is more than one legally permissible outcome, House applies, and where the underlying decision is one which permits of only one legally acceptable outcome, the correctness standard applies.

GAGELER CJ: And, of course, an appeal is a product of statute. What we are looking at in the precise circumstances of this case is the incidence of an appeal to be determined under section 300, which you say is to be treated as an appeal by way of rehearing. You say, I think, that the appeal from a decision under section 137 is to be determined in the same way under section 300 as it would be in determining whether there is error in the decision for the purpose of section 276.

MR CARR: Yes. Can we amplify that submission by reference to some of the extrinsic materials which demonstrate that the statutory purpose would be somewhat stultified if one applied a different standard to the two forms of appeal that your Honour the Chief Justice has just identified to me. Can we perhaps do it relatively quickly by taking your Honours to the second reading speech, relevant parts of which start at page 1530 of the joint book of authorities.

To give your Honours the context, interlocutory appeals in criminal proceedings were, when introduced in 2009, without any precedent in Victoria, so the mischief sought to be remedied by including this new form of appeal was clearly identified by the Attorney‑General in his second reading speech. At the bottom of page 1530, the last paragraph on that page under the heading “Interlocutory appeals and cases stated”, the Attorney‑General said this:

Interlocutory appeals provide a mechanism for a trial judge’s rulings to be tested on appeal before a trial starts or, in limited circumstances, during trial. An interlocutory appeal essentially brings forward an issue that may otherwise become part of a post‑conviction appeal or a DPP reference following an acquittal.

Can we just divert for a moment. A DPP reference following an acquittal is provided for by, as I recall, section 308 of the Criminal Procedure Act and does not infringe the finality of the acquittal. It merely allows for guidance to be given as to the applicable law in future cases. So, one sees in what the Attorney‑General said the notion of the desirability of bringing forward an issue that otherwise might become part of a post‑conviction appeal. The benefits of interlocutory appeals are described on the next page in the third paragraph:

Because interlocutory appeals deal with issues early in the proceedings that might otherwise result in a successful post‑conviction appeal, they can:

prevent guilty people being acquitted;

prevent innocent people from being wrongly convicted; and

prevent retrials because there was an error at the accused’s trial.

As a result, interlocutory appeals can be of benefit in reducing the stress and trauma of court proceedings for victims, witnesses and the accused.

There is an explicit identification of the purpose or objective of the new interlocutory appeal regime, consistent with the notion of bringing forward and issue. The benefit sought to be achieved through the introduction of this regime is the error that would otherwise infect the trial and merge into an acquittal of a guilty person, or the conviction of an innocent person, or a retrial because of an error.

That statutory purpose would be stultified – at least to a degree – if one applied a different standard of review at the interlocutory stage as opposed to a final appeal. The similar point is made in the statement of compatibility, tabled by the Attorney‑General in compliance with the Charter of Human Rights and Responsibilities Act. At page 1521 of the joint book of authorities, in the first full paragraph on the page, it is said:

Other initiatives in the bill are also designed to help to reduce delay. These include the new notice to appear process in summary proceedings (clauses 21‑26) and the introduction of interlocutory appeals (clauses 295‑301) which will help in avoiding unnecessary retrials, which cause significant delay.

One can see the statutory purpose of bringing forward issues that might otherwise need to be resolved on a conviction appeal, and the correction of error at an early stage, before it can result in an unjust or inappropriate outcome. Such a purpose being advanced by the application of the same standard of error as on a conviction appeal, and in respect of the risk of, or the desirability of avoiding unjust acquittals would be advanced by the application of the correctness standard to decisions which permit of only one legally available outcome.

It is not to be overlooked, of course, that in the case of a prosecution appeal against an evidentiary ruling, the subject of the appeal must be evidence which, if excluded, would eliminate or substantially weaken – not far short of eliminate – the prosecution case, and so error in such a decision, which was left uncorrected because of a deferential standard inappropriate to a decision which permitted of only one outcome would fail to accord with the statutory purpose.

Can we then turn to the subject matter of the underlying decision that is pursuant to section 137 of the Evidence Act to make the point which we, in light of paragraph 9 of the respondent’s submissions, take not to be in contest that section 137 permits of only one uniquely correct outcome in its application to any given facts. To take your Honours fairly briefly through that issue, can we remind your Honours that in Em v The Queen – the relevant passage is at page 224 of the joint book of authorities – Justices Gummow and Hayne, in 2007 ‑ ‑ ‑

GAGELER CJ: It is helpful if you give us the Commonwealth Law Report reference as well.

MR CARR: Thank you, your Honours.

GAGELER CJ: Thank you.

MR CARR: It is [2007] HCA 46; 232 CLR 67, and page 101 of the report. In paragraph 95, their Honours refer to the heading to the New South Wales Act, as it then existed:

Part 3.11 (ss 135‑139) is headed “Discretions to exclude evidence”. The heading is misleading. Section 137 obliges the court in a criminal proceeding to refuse to admit evidence adduced by the prosecution where the danger of “unfair prejudice to the defendant” outweighs its probative value.

On the next page, at paragraph 102, their Honours say in the last sentence of the paragraph:

If that imbalance had been demonstrated, the trial judge would have been bound to exclude the evidence.

GLEESON J: What does the word “unfair” add to prejudice?

MR CARR: “Unfair” means prejudice that is of a nature that ought not occur. That is, it is not merely prejudice in the sense that evidence is harmful to the accused’s case, but prejudice that involves some impermissible form of reasoning, or giving evidence undue weight, or perhaps evidence that involves some procedural disadvantage to the accused.

EDELMAN J: In Ridgeway, and I think in some of the judgments in Strickland, the exclusion of evidence under Bunning v Cross or under 137 was placed as part of a spectrum which ends up with abuse of process. One would expect, on that view, the approach that is taken to abuse of process decisions to be the same as the approach that is taken to 137 decisions.

MR CARR: Yes, and the underlying purpose being a fair trial and the jurisdiction being exercised in a way that ensures the fair trial in section 137. Your Honour Justice Edelman’s point is reinforced by section 190 of the Evidence Act, which allows for an accused person or the parties to agree to disapply certain rules of evidence, but that does not extend to section 137; because of its nature, it is essential to a fair trial and cannot be disapplied even by agreement.

The point we wish to make very briefly by reference to Em v The Queen is that when the Evidence Act was subsequently introduced in Victoria on 1 January 2009, the heading was amended to reflect the observations made by their Honours – and indeed, it has been at the same time amended in other states – such that the heading to Part 3.11 now is as your Honours will see in the joint book of authorities, “Discretionary and mandatory exclusions”. Thus, the legislature has indicated the mandatory nature of section 137, rather than its – might have previously been perceived to be a discretionary exercise.

We have referred in our outline to a number of other authorities by reference to which we seek to make good the point that section 137 is not discretionary in nature. If we can just very briefly take your Honours to some of them without covering all of them. In the report of Aytugrul [2012] HCA 15; 247 CLR 170, at page 184 of the report, in the judgment of Chief Justice French, Justices Hayne, Crennan and Bell, one sees at paragraphs 23 and 24 what seems to be an application of the correctness standard to the question of section 137. At paragraph 23, their Honours observed that:

The question that was presented for consideration in this matter must be identified with greater specificity than is permitted by general reference to how the human mind can or commonly will deal with statistical information. In this case, the question was whether Ms Pineda’s evidence –

and so on. Then at paragraph 24, their Honours seem to address the question in terms of what answer should now be given to that question:

No reason is shown for answering either form of those more particular questions in favour of the appellant.

GAGELER CJ: Can I just take you up on that discussion, which continues on then to the next couple of paragraphs. Sections 135 and 37 are seen to be being dealt with compendiously, but as I understand your submission, you would draw a distinction between section 135, which you, I think, would say is a House v The King discretion, and section 137, which you say is a binary outcome.

MR CARR: We would not necessarily submit either way as to section 135, because the considerations might be different, but in respect of section 137, we do submit that it is firmly established to be binary and permitting only one correct outcome. There are different passages that perhaps suggest section 135 might be discretionary, and some other judgments that suggest that it might be of a nature which permits only one correct outcome. We do not ‑ ‑ ‑

GAGELER CJ: Given that ambiguity, though, to rely on a passage that rolls them up together does not get you very far, I think.

MR CARR: No, it does not get us far, but it does at least suggest that certainly, both 135 and 137 – if they are indistinguishable, then the correctness standard would apply to both. The perhaps more directly relevant passage is in R v Bauer [2018] HCA 40; 266 CLR 56. At page 88 of the report, in the judgment of the Court, the Court says in paragraph 61:

The question of whether tendency evidence is of significant probative value –

That is, pursuant to section 97(2):

is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Consequently, in an appeal against conviction to an intermediate court of appeal, or on a subsequent appeal to this Court, it is for the court itself to determine whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was.

In the footnote, there are references to cases dealing with inter alia section 137, and at paragraph 63, in the concluding sentence, the Court says:

The trial judge was correct to hold that RC’s evidence was not productive of unfair prejudice.

STEWARD J: Do you want to say anything about the reference to McCartney in footnote (65) – “See and compare”?

MR CARR: Yes, it seems to be a disapproval of the distinction drawn in McCartney between the application of House at an interlocutory stage, and application of the correctness standard at the conviction appeal stage, those being the paragraphs that are referred to therein.

Can we move to the second error that we submit can be found in the reasoning of the Court of Appeal. We have dealt with this in writing in a reasonably general way, but we want to exemplify the dangers of prejudice that were present in the admission of this evidence by reference to the critical evidence at trial, namely, the identity of the assailant.

GAGELER CJ: So, the first question is a question of statutory construction. Have you said everything you want to say about the nature of the appeal?

MR CARR: Yes, with the adoption of what we have put in writing. I am conscious of the time and ‑ ‑ ‑

GAGELER CJ: I just wanted to ask you a question about the basis upon which the decisions of the Victorian Court of Appeal that have invoked House v The King have proceeded. We have a bunch of them mentioned in footnote 62 of the Court of Appeal’s judgment here – one is McCartney – but how did they get to House v The King? Is there any reason to process that we should take into account and that you wish to criticise?

MR CARR: Yes. We have perhaps, in a somewhat circular manner, already done so. The reasoning is essentially that the Victorian court started by applying the correctness standard in a case called PNJ and then the New South Wales Court of Appeal decided a case called DAO v The Queen, and in KJM, which is the third case cited in footnote 62, the Victorian court then adopted the reasoning in DAO v The Queen.

GLEESON J: And that was based on judicial restraint?

MR CARR: It was.

GLEESON J: Was it based on anything else?

MR CARR: DAO was a somewhat unusual case where the consideration – which perhaps needs just a little unpacking. So, in DAO, because the New South Wales statute is different from the Victorian statute and only permits an appeal against a judgment or order by an accused person and provides differentially for an appeal by the prosecution against an evidentiary ruling, the accused in DAO sought to challenge a decision to decline to order separate trials by reference to a contention that the underlying decision that the evidence was cross‑admissible was wrong. So, by that somewhat convoluted pathway, the New South Wales Court of Criminal Appeal were called upon to determine whether error was shown in the decision to order separate trials and, by necessity, therefore, the underlying evidentiary ruling.

The reasoning of Chief Justice Spigelman is largely based upon the considerations of an interlocutory appeal causing fragmentation and so forth, considerations that when the Victorian statute was introduced, in ways that we have dealt with, those considerations were put into the leave test, and so the analysis in DAO of the New South Wales statute was picked up in Victoria and followed thereafter, but it does not have any of the salience that it had under the New South Wales statute, because of the way that Victorian statute addresses concerns of fragmentation and so forth.

GLEESON J: But those considerations could have been taken into account on the leave question in DAO, could they not?

MR CARR: They could have been, yes, but they were used to influence the standard of appellate review. We have made our submissions about why that is inappropriate in the Victorian context.

BEECH-JONES J: As I recall, the underlying evidentiary fight in DAO was about coincidence evidence – I think coincidence and perhaps tenancy. So, that was also held to be subject to House standard, and that would be inconsistent with Bauer.

MR CARR: Yes. Both Chief Justice Spigelman and President Allsop suggested that the evaluative and subjective nature of sections 97 and 137 were suggestive of House and that, as your Honour has just pointed out, would be inconsistent with Bauer.

EDELMAN J: Well, that consideration is not consistent with Bauer. The evaluative nature is one of the factors that is suggestive of a House‑type approach, but that is only one of the factors.

MR CARR: And certainly far from determinative, as was most recently pointed out in GLJ in the plurality judgment, and also in a different way in your Honour’s judgment.

So, passing over the other aspects of the argument that we have outlined in writing, can we deal with what we submit is the error in the Court of Appeal’s reasoning with respect to the danger of unfair prejudice. The appropriate starting point is in core appeal book page 92, paragraph 182. Their Honours make a finding about which there is no challenge in this court. Their Honours say:

We accept that there is a real – and unfair – prejudice to the applicant in admitting hearsay evidence of the impugned representations because the applicant will not be able to cross‑examine the maker of the representations: that is, they will be untested. That may result in the jury giving the representations undue weight. We also accept that ‘confrontation and the opportunity for cross examination is of central significance to the common law adversarial system of trial’.

So, there is no issue in this court that there was a real and unfair prejudice to the applicant in the admission of each of the representations admitted by the trial judge.

The Court of Appeal provide essentially two answers to the prejudice. At 183, their Honours make a point about the directions that can be given, one about forensic disadvantage by reason of the inability to cross-examine and test the representations, and a danger of “giving too much weight to untested statements”, and secondly, the possibility of a direction that the representations may be unreliable. The second answer is in the remainder of paragraph 183 that, in essence, the appellant can make a closing address to the jury and therein make submissions about the points that might have otherwise been raised in cross-examination. Those considerations lead to the conclusion at paragraph 187 that:

even if there is a danger of ‘unfair prejudice’ by reason of the repetition of the representations, it does not follow that the evidence must be excluded under s 137. That section requires exclusion only if the danger of the unfair prejudice would outweigh the probative value . . . In the present case, and bearing in mind the role of an appellate court on an interlocutory appeal –

picking up what they had earlier said about the deferential standard:

we consider it was open to the trial judge to conclude that the danger of any unfair prejudice would not outweigh the probative value of the evidence. That is particularly so in light of the ability . . . to fashion appropriate directions –

And in the last sentence of the paragraph, an unqualified assumption that:

the jury will follow such judicial directions.

EDELMAN J: Is your submission that the more important or essential the evidence is under section 65 to a prosecution case then the more likely it is that it should be excluded under 137?

MR CARR: No, we do not put it that way.

EDELMAN J: Why would that not be the effect of your submission?

MR CARR: Because what needs to be balanced is the particular circumstances of the case, and in a case where one is not able to cross‑examine one needs to assess the impact of the loss of the ability to cross‑examine, and if the ultimate conclusion is that the evidence is likely to be given undue weight, or there is a danger of the evidence being given undue weight which cannot be guarded against appropriately by directions, then if the weight that the prosecution would have the jury put upon the evidence is central that is a relevant consideration in assessing the balancing exercise in section 137. It is not simply that the more important the evidence the more likely it is to be excluded, rather it is an individual assessment of the circumstances of the case that, in our submission, is required.

EDELMAN J: Well, take the body cam footage then, what is the – if the body cam footage were admitted, just by itself, what is the line of cross‑examination then that the accused would be deprived of?

MR CARR: Can we exemplify the issue not just by reference to the body cam but by reference to the particular representations that go to the critical issue in this case, which is the identity of the assailant. The defence response contends that the complainant is not a witness of truth. Her veracity is on the identification of her assailant is the issue at trial, and there are a series of representations in each statement made by the complainant that are important on that issue and materially inconsistent in such a way that the loss of the opportunity to cross‑examine is of a very significant moment in the circumstances of this case. Can we explain why that is so by taking your Honours through the series of representations that the complainant makes about the identity of the assailant?

EDELMAN J: You are drawing a line, then, between the evidence that concerns identity and the evidence which concerns the injuries and the aftermath, effectively.

MR CARR: Yes, and what we are seeking to do is exemplify the danger which is present more generally but particularly high in respect of the representations concerning identity.

BEECH‑JONES J: Do you accept that those representations, though, have to be accepted on their face and, given that we are talking about someone who knew your client, they had very high probative value?

MR CARR: Yes.

BEECH‑JONES J: So, you have to get a level of prejudice above “very high”.

MR CARR: Yes. And to be clear ‑ ‑ ‑

BEECH‑JONES J: And you say liar, you do not say unreliable?

MR CARR: The Court of Appeal said no possibility of mistake about identity, and we accept that finding. The defence response is unequivocal that the issue at trial is whether the complainant is a witness of truth.

BEECH‑JONES J: In the sense of lying.

MR CARR: Yes.

BEECH‑JONES J: To a bodycam within about six hours of these events.

MR CARR: Can we take ‑ ‑ ‑

BEECH‑JONES J: You will take us through it, I understand.

MR CARR: What the series of representations that we will your Honours to really leave one with is inconsistencies that are not resolvable by any logical inferential process of reasoning.

GLEESON J: But if the problem is inconsistencies, then why is that not something that just is a matter of submission as opposed to a matter of unfair prejudice?

MR CARR: Can we take your Honours to the representation and then answer that question if we might?

BEECH‑JONES J: Can I put it in these terms: if you can talk us into it, why can you not talk a jury into it? But you take your course.

MR CARR: Because it is not about – we are not seeking to demonstrate that the complainant should be disbelieved by this Court. What we are seeking to demonstrate in the inability to properly test this evidence by logical reasoning without engaging in a form of impermissible speculation. It is not a jury question, in our submission.

Can we take your Honours first to the book of further materials at page 81, where the complainant’s statement appears to make this point by way of that ground. The complainant, as one sees from paragraphs 3 and 5, had an ex‑partner of 11 years to whom she had recently finished a relationship, and the appellant was not someone with whom she had been in a relationship.

If we can take your Honours sequentially through the series of representations, the first representation is in the supplementary book of further materials filed yesterday at page 4, to a person known by the pseudonym Paula Thomas who is also now deceased, and it follows from whom no further details can be obtained. Paula Thomas is the neighbour to whom the complainant first goes, perhaps five or so hours after the end of the incident.

EDELMAN J: Which page is this?

MR CARR: In the supplementary book of further materials, filed yesterday ‑ ‑ ‑

GAGELER CJ: Did you say page 4?

MR CARR: Page 4.

GAGELER CJ: It has a different name at the top, I think.

MR CARR: Yes, she is referred to by a pseudonym in the Court of Appeal’s judgment.

BEECH‑JONES J: And she had passed away at the time of the Court of Appeal’s judgment?

MR CARR: Yes. Long before.

BEECH‑JONES J: The neighbour had?

MR CARR: Yes. At paragraph 5, this person says:

I asked what had happened and [the complainant] said, He came back. I asked who came back. But she didn’t tell me.

In this sparse statement, incapable of being elaborated upon, the complainant seems to have on one view failed to answer a question, on another view refused to identify her assailant, and then she asks to use the phone to speak to her mother and she makes a representation to her mother in which she identifies the appellant as her assailant. Without taking your Honours to it, it is at page 37 of the book of further materials.

Following that, she calls for medical assistance, calls 000, the Court of Appeal make the point that she was not seeking police, she was seeking medical assistance at that stage. At page 41 of the book of further materials, she says, on the third line:

So I got bashed last night by an ex‑partner.

One sees the identification of the assailant as an ex‑partner, not a description that would appear apt, in her mind, to describe the appellant.

GLEESON J: Does the age correspond with the ex‑partner?

MR CARR: There are no details about the ex‑partner.

BEECH‑JONES J: How old is your client?

MR CARR: Forty seven at the time. Then, one sees the next representation in a conversation with Leading Senior Constable Stack at a bit after 1.00 pm on the same day. At page 61, you see Leading Senior Constable Stack, at the bottom of the page, introduces the appellant’s name. Then at page 67, in the midst of the complainant’s description of events, in the bottom half of the page, Leading Senior Constable Stack says:

it’s [the appellant] we’re talking about?

[THE COMPLAINANT]: Yeah.

LEADING SENIOR CONSTABLE STACKS: And have you been in a relationship with him . . .

[THE COMPLAINANT]: He was just a friend –

So, one sees there an adoption of the identification by Leading Senior Constable Stack of the appellant.

GAGELER CJ: What are we getting out of this, just in a nutshell?

MR CARR: These inconsistencies might be explicable on the one hand by a deliberate misdescription, a deliberate lie about the identity of the assailant, or, alternatively, the Crown might posit some reason for the complainant to have lied or falsely described the appellant as an ex‑partner despite her evidence being clear that he was no such thing.

GAGELER CJ: Are you putting it forward as relevant to the probative value, so it is only the unfair prejudice?

MR CARR: Yes, and the problem – and just to complete the picture before we elaborate on the problem – there is a further representation the following day to the forensic medical officer who examined the complainant, which is at page 95 of the book of further materials, and in paragraph 4 again the complainant identifies her assailant as an “ex‑partner”.

EDELMAN J: What is the inconsistency between being an ex‑partner and being a friend? An ex‑partner can be a friend.

MR CARR: The complainant makes clear that she has just come out of an 11‑year relationship, and that is, on any ordinary understanding of the use of the language “ex‑partner”, the complainant’s ex‑partner, and she makes clear that she has not been in a relationship with the appellant. So, she ‑ ‑ ‑

BEECH‑JONES J: This is the statement you are talking about that is the source of that – what you just put to us.

MR CARR: That, and also the passage that I took your Honours to just a moment ago, and perhaps I can just give your Honours a couple of references to bed down that issue that the appellant was not her ex‑partner. Most obviously in her statement, and also in the description at page 71 to Leading Senior Constable Stack. Stack says:

But you’re saying that it was a friendship, you didn’t have a relationship.

The answer comes:

[THE COMPLAINANT]: We were friends . . .

. . .

LEADING SENIOR CONSTABLE STACK: ‑ ‑ ‑ was it an intimate friendship?

[THE COMPLAINANT]: No.

Entirely consistent with the statement.

GAGELER CJ: Mr Carr, we have a custom of taking a morning adjournment, which we will do now, for 15 minutes.

MR CARR: Thank you, your Honours.

AT 11.21 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.34 AM:

MR CARR: I just want to finish off fairly briefly on this issue. The effect of the various representations that we have taken the Court to is in her first representation which is incapable of being elaborated upon or understood in any further detail.

BEECH-JONES J: Just so I understand that, you do not object to that evidence. That is not the category of evidence to which you object to, that is to the neighbour.

MR CARR: That evidence is not in, the Crown is not leading that evidence, which is why we have put it in as a supplementary book of further material, to inform the submission that we make about the difficulty that a jury will have in understanding ‑ ‑ ‑

BEECH-JONES J: But you could deploy it in the way you just did.

MR CARR: Yes.

BEECH‑JONES J: Right, okay. Sorry, I interrupted your submission.

MR CARR: The problem with these series of representations and the inconsistencies between them is this. In the absence of cross-examination which would elicit and then test which identification the complainant cleaved to at trial, the ex-partner or the appellant. If the appellant, what explanation or rationale she would give for what, on its face, seems to be an irreconcilable inconsistency.

Absent that explanation, absent an understanding of a possible reason that underpins these inconsistencies, the jury are left with no means by which to assess the degree to which these inconsistencies impair her credibility. Directions might be effective to some degree in addressing that issue, if the issue were reliability, because reliability is an issue about which ordinary experience might inform a jury. Where the issue is, as it unequivocally is in this case, is the complainant telling the truth in those representations in which she identifies the appellant? The jury is left at sea without any rational basis to determine to what degree do these inconsistencies undercut her credibility.

GLEESON J: You could cross‑examine the mother about this.

MR CARR: Not about the complainant’s credibility. One could cross‑examine the mother about the precise words used, but one cannot cross‑examine the unavailable deceased person about what would seem to be a refusal to state the identity of the assailant. One cannot cross‑examine the mother about why would the complainant have attributed this to her ex‑partner on ‑ ‑ ‑

BEECH-JONES J: Well, on that, do you have a suggested motive to lie? I did not see it in your materials.

MR CARR: No. And that makes it all the harder because ‑ ‑ ‑

BEECH-JONES J: Well, if you did have one, that is what you would put to her in cross‑examination, is it not?

MR CARR: If the materials had a motive to lie, then that could be deployed as an answer to what otherwise is likely to happen in this trial, which is the jury, responding to this in the same way that the learned trial judge responded to and dismissed the point made by trial counsel about the complainant’s refusal to attend on two occasions to be cross‑examined about her evidence prior to trial. The trial judge’s response at paragraph 194 of the Court of Appeal’s judgment is, in essence, to dismiss the appellant’s case as speculative. Without the means by which to assess the significance of these issues – bearing in mind, of course, the jury will be directed not to speculate – the accused is left with no effective means to rationally say to the jury, this is how you should assess the degree to which those inconsistencies affect the complainant’s credibility.

It is not a matter of ordinary experience. Directions cannot address it. It is not a matter about which submissions to the jury can substitute, because it is all about why the complainant has given one identification on a couple of occasions, refused to identify on another occasion, and given an identification of the appellant on three other occasions. That, in our submission, is something that cannot be cured by making submissions, it cannot be cured by directions, and the prejudicial effect that follows, in our submission, is exceptionally high. The correct ‑ ‑ ‑

BEECH-JONES J: So, this produces – are you saying, we do not have a suggested motive for why she should lie, but because we cannot cross‑examine her to get what her explanation for these inconsistencies is – is that what it reduces to? Because you pointed them out to us, and you can point them out to the jury, but all that you do not have is her answer.

MR CARR: What we do not have, because of the inability to cross‑examine, is the answer which would give a rational basis for determining how much do these inconsistencies hit home. Are these inconsistencies of little moment, or are they critically important? In our submission, the detriment is the lack of any rational basis in the absence of cross-examination to make that assessment.

BEECH-JONES J: Why do we think cross-examination would supply that deficit?

EDELMAN J: What is the question? Is the question you would have asked in cross-examination: why use the words “ex-partner” if you meant “friend”? Would that be the question?

MR CARR: No, the question would be – depending, of course, upon what evidence had been given by the now‑deceased neighbour – why did you refuse to identify your assailant in that first complaint? Why thereafter did you on two occasions identify your ex‑partner as the assailant? And having been provided with an explanation, the accused would be in a position to either test that explanation by way of further cross‑examination or put to the jury that that explanation is incredible, whatever the situation might be, so as to provide the jury with a basis, in reason rather than speculation, to assess the weight properly given to this evidence.

BEECH-JONES J: I could think of a lot of reasons why you would not ask that question in this case – that is, why did you not tell two perfect strangers but tell your mother and people you trusted who the perpetrator was? I mean, we can all think up a question you might ask, but there would be very good reasons not to ask that one, because you might be stuck with an answer that is overwhelmingly powerful and cogent.

MR CARR: In this case, realistically, counsel would have to ask that question because counsel would have to challenge if the answer was, it was the appellant not the ex‑partner. Counsel would have to challenge that. As a forensic reality, counsel could not leave that unasked.

BEECH-JONES J: Well, the why question, that is a different thing. They would have to challenge her on whether she was identifying him, but they would not have to challenge them on why in these other statements you refer to “ex‑partner”.

MR CARR: Minds might differ about forensic realities, but our submission is, in this case, for various reasons, counsel would ask the why question, and forensically would have to, but that is perhaps departing a little bit from the assessment of the danger of prejudicial effect. The danger is that which we have identified, that there is not a rational, logical basis in the absence of an explanation for these inconsistencies to allow a proper assessment of to what degree they impair her credibility.

We have, in our oral argument, exemplified the problem by a reference to these particular representations in our written argument made more generally, but we do not stay to take the Court to all of the other representations. We rely, in that respect, upon what we have said in writing. Would your Honours excuse me for a second? The same analysis applies to the failure to answer the summons when she was called upon to give evidence on oath under section 198B of the Criminal Procedure Act prior to trial. The learned trial judge, as indicated earlier, dismissed that as speculative, but ‑ ‑ ‑

GLEESON J: What was the timing of that?

MR CARR: I will just get the precise timing, but it was after committal, and prior to trial. The system in Victoria allows for cross‑examination of a witness post‑committal in the trial court.

GLEESON J: Was it before or after the July 2022 letter?

MR CARR: I think both occasions were after. Can I just confirm that answer – but I am confident the answer is both occasions were after. They were both in late 2022.

BEECH‑JONES J: She had attended at the committal hearing, had she not?

MR CARR: But was not cross‑examined.

BEECH‑JONES J: Do we know when she found out she would not be cross‑examined? On the day of the committal hearing – or was that not known?

MR CARR: I think – well, it was certainly known. As to whether it is in the record, it suggested that she attended the committal hearing in the record.

BEECH‑JONES J: In anticipation of being cross‑examined, and was not.

MR CARR: Yes. Those are our submissions.

GAGELER CJ: Thank you, Mr Carr. Mr Kissane.

MR KISSANE: Thank you, your Honour. This appeal raises the issue as to what is the appropriate standard of review in relation to an interlocutory appeal. It is agreed, as I understand it, that section 300 of the Criminal Procedure Act does not fix a standard of review. I think that much is agreed, and the Court has been through the leave provisions with my learned friend.

What the Court of Appeal in Victoria did in relation to the standard of review for an interlocutory appeal – or where we got to the point we are at, at the present stage – comes from the decision of McCartney v The Queen [2012] VSCA 268; (2012) 38 VR 1. That was actually a section 137 decision. It was also an appeal against conviction rather than an interlocutory appeal. There, the Court of Appeal in Victoria reaffirmed two things: one, the standard of the review that was to apply in relation to a conviction appeal, and secondly, the standard that was said to apply in relation to an interlocutory appeal. Since 2012, that is effectively the way matters have been dealt with in Victoria. So, when one comes to this case, one sees, leaving aside the penultimate paragraph, that the court dealt with the decision on the basis of House v The King principles.

If I can just take the Court to that case of McCartney, which is at page 936 of volume 5. Can I start by saying that, in relation to this case, the court dealt with section 137 on the basis that it was not a discretion, that it was a question for the court to – having done the evaluative task, it was a question for the court to determine whether the evidence was admissible or not. The court then digressed at paragraph 46 onwards to discuss the position on interlocutory appeals. The court said, at paragraph 48:

The court in KJM –

I do not think it is a case that is in the materials, but it was a five‑member Bench, and in that case the court followed the case of DAO in New South Wales and held that in relation to:

an interlocutory appeal . . . under ss 97/101 was governed by the principles in House v R.

The court then went on to state at paragraph 49 that the position in relation to:

an appeal against conviction is, of course, quite different from that of a court hearing an interlocutory appeal before the trial commences.

Then at 50:

On the appeal against conviction, the appeal court is able to review the record of the relevant evidence as actually presented to the jury and can assess, in the context of the trial as a whole, whether there was a danger of unfair prejudice to the accused and, if so, whether it outweighed the probative value of the evidence.

Then at paragraph 51, the court noted that the legal test in relation to section 137 was the same but, in its view, that did not preclude:

a different standard of appellate review on a conviction appeal from that which applies to an interlocutory appeal. Such a difference of approach is to be explained by the different functions, and perspectives, of the appeal court at those different stages of the proceeding.

So, that is how, in Victoria, we arrived at the position we arrived at, and that is why in considering this appeal the Court of Appeal primarily used House v The King principles, because, of course, it was bound by the five‑member Bench in KJM.

GAGELER CJ: Is there any more reasoning in the KJM decision?

MR KISSANE: No more than that. No more than what is in this case, your Honour. I think this case effectively repeats it. The court in KJM made similar findings to the ones that are repeated here.

GAGELER CJ: I am not sure I actually follow this reasoning very well. Accepting that there can be a difference between the standards of review at the different stages, why should there be?

MR KISSANE: Because the court at a different stage is in a different position. The court on an interlocutory appeal – and this case may be one that is a little bit unusual in the sense that it is under section 55 and the evidence is fixed, but in an interlocutory appeal where – when the court is dealing with evidence that is proposed to be called – there may have been a voir dire but, of course, the evidence may come out differently once the evidence is called in front of a jury. So, it is the fact that, on an interlocutory appeal, in general, the evidence is not one that is in a complete form.

EDELMAN J: The result of an appeal may be dictated by a forensic choice by the accused if the accused chooses to bring the appeal as an interlocutory appeal, provided the accused can get through the leave and certification hoops. A different approach will be taken to exactly the same question on appeal – or what might be exactly the same question on appeal – as if the accused chooses to bring the appeal only after a conviction occurs.

MR KISSANE: Yes, except that if it is done after the conviction occurs, then one has the full record of the trial.

EDELMAN J: That is why I said “might”. It might be exactly the same evidence that had been given say at, say, the voir dire or the trial.

MR KISSANE: It might, but it may not be. I mean, the advantage of this system of having a different standard of review in relation to an interlocutory appeal as opposed to a final appeal is that when dealing with a final appeal, all the evidence is there. But here, for example, there could be further cross-examination of the mother ‑ ‑ ‑

BEECH-JONES J: Mr Kissane, is not this all, though, protected by the leave requirement, rather than altering the standard of review?

MR KISSANE: Well, the Court of Appeal in Victoria considered that both were necessary and, as my learned friend said, started off going down correctness but then went back to this House v The King approach.

BEECH-JONES J: But looking at it afresh now, you standing there, why are these concerns not about restraint and uncertainty because the evidence may come out differently or protected by the considerations – I think it is in 298, or about – which govern the grant of leave to appeal?

MR KISSANE: Certainly, they have some impact on it.

STEWARD J: Could I ask a related question. Mr Kissane, I know you say the statutory scheme in Division 4 does not supply the answer to what type of review one should have. Would not that statutory scheme have greater utility if the interlocutory appeal had a correctness standard? Leaving aside, of course, all of what you said about the fact that it is at a very early stage, things might change. But would not the statutory scheme be better?

MR KISSANE: Except that then you are asking an appeal court to, in effect, give an interlocutory judgment on the basis of material that is not complete. It is not that we have a final record at that point.

STEWARD J: But why would that drive you to a lower standard of review?

MR KISSANE: Because what you are reviewing, in an evidentiary sense, at that point is whether the trial judge has made an appropriate decision.

STEWARD J: Or to use an expression, is in the ballpark.

MR KISSANE: Yes, is in the ballpark. The expression in this case was open, I suppose. That is the one – when one deals with House v The King, one ultimately gets to taking into account a material consideration, failing to take into account a material consideration, taking into account an immaterial consideration. One ultimately gets to questions of law and reasonableness, and ‑ ‑ ‑

EDELMAN J: It really does cut across, though, the Attorney‑General’s concerns that the appellant took us to, which are basically concerns that the court get it right early.

MR KISSANE: Yes, which is not to say that in using a House v The King standard that that is not necessarily going to get it right in most cases, because there will be a set – if I can put it this way. If the decision is correct, it would have been open. If a decision is open, there will be a small subset of decisions where a court might think, this is not correct, but it is open, so we are going to uphold it. There will be that subset, potentially. But at the end of the day, those concerns that the Attorney‑General expressed, in our submission, can be dealt with by the House standard, rather than correctness standard, and if it is only going to be – one would hope – a small subset of cases where the court would say, this is not a reasonable decision, but we are giving due difference to the trial judge, we consider it open – not a correct decision, but we consider it open.

Of course, the question really before this Court is what the situation is in relation to section 137, but it does seem as though this has broader implications for the general test. What happens if the Court of Appeal, on an interlocutory stage, is considering not 137 but some other part of the Evidence Act, or considering whether there should be separate trials, and the like? What test does it apply then?

Whilst at 137 one might be at the point of a binary decision which elicits one answer which is accepted, for a lot of decisions under the Evidence Act, and other decisions that might go to the Court of Appeal, that may not be the case. So, what does the court do then? Does it have a debate every time about whether it is House v The King or whether it is the correctness standard, or does this Court say the correctness standard applies to interlocutory appeals under 137 but not necessarily under 135? Not necessarily under 101, when one is dealing with tendency. That is the issue that ‑ ‑ ‑

BEECH-JONES J: But that all turns on the nature of the underlying decision. So, on the appellant’s argument, if they all are either true discretionary decisions, a full appeal on those does not convert them to anything else, and the Court of Appeal must look for House v The King.

MR KISSANE: Yes.

BEECH-JONES J: But if they are not, then they are correctness ‑ ‑ ‑

MR KISSANE: Yes. It ultimately becomes a question of whether you draw the line there or whether you say there is a group of decisions that are dealt with that are considered not to be discretions, whether they need to be dealt with a different way to those that are discretions. Can I just take the ‑ ‑ ‑

GAGELER CJ: Can I just ask you a little bit of the history before the five‑judge decision of the Victorian Court of Appeal that you mentioned earlier when the view was taken that the correctness standard applied. Was that across the board for interlocutory appeals, or is it only in respect of discretionary decisions?

MR KISSANE: I think that initially was – when the Victorian Court of Appeal said that correctness did apply at the very early stage, from recollection, that was a section 97 decision, PNJ, and it then moved to the case that I have taken the Court to, McCartney, where we have made this distinction between interlocutory decisions and conviction appeals. But the earlier decision was not, as I recall – and I can be corrected if I am wrong about that – a 137 decision.

GAGELER CJ: Thank you.

MR KISSANE: Although the legislature is silent as to the test under section 300, there was a guide that was produced at the time that the legislation was introduced. Part of the guide is in the materials in volume 7, and at page 1656.

GAGELER CJ: Can you tell us about the status of this document?

MR KISSANE: Yes. So, it is something that on occasion the joint Court of Appeal have taken into account. It was a guide that was produced at the time. I do not know that it has any official status. It is not in the same category as notes or examples in legislation. It is not ‑ ‑ ‑

EDELMAN J: It is produced by the Department of Justice.

MR KISSANE: Produced by the Department of Justice, yes, and it was produced at the time the legislation came into force and is generally being used as a guide to interpret it, but it has no formal status. Certainly, under the Acts Interpretation Act in Victoria – I think this is referred to in our submissions – it is permissible for the court to look at material in interpreting statutes, and this guide was produced at the time that the statute was first introduced. So, I cannot submit that it has any formal status in the same way that the other extrinsic material may, but it is a useful guide as to what the Parliament intended and is in more detail, of course, than the second reading speech and explanation memorandum which basically just detail the sections. In any event ‑ ‑ ‑

EDELMAN J: So, is it a guide as to what Parliament intended, or is it a guide as to what one of the relevant stakeholders thought that Parliament might have intended?

MR KISSANE: Well, it is a guide that was put out by the Department of Justice, as your Honour says, at the time, so that it was not a stakeholder guide. It was done as, here is the legislation and here is the guide to dealing with it. The page I wanted to take the Court to was at 1656. There, the guide says in relation to section 300:

This section does not set any particular threshold for when an interlocutory appeal should be allowed or refused. This reflects the diversity of decisions which could be the subject of an interlocutory appeal. The approach taken by the Court of Appeal should continue to reflect longstanding principles of appellate review of judicial decisions. For example, appellate courts traditionally:

• give deference to first instance findings of fact or assessments of witnesses

• give limited deference to areas of discretion such as weighing the prejudicial effect of evidence against its probative value

• give no deference to questions of statutory interpretation or the admissibility of evidence as a matter of law.

GAGELER CJ: It kind of cuts against your argument, does it not?

MR KISSANE: To some extent, but on the one hand it does seem to at least have some of the principles in House v The King.

GAGELER CJ: Or some decisions.

MR KISSANE: Yes. Certainly, House v The King looks at the issue of findings of fact and whether they are open, looks at questions of law and whether the court has those correct, and it gives deference in the end to the ruling of the trial judge in relation to a particular aspect. So, in that sense, whilst it could be said that perhaps even the second point looks a little bit more correctness, overall, when one looks at it, in our submission, it is at least firstly a statement that there was no particular threshold set in relation to an interlocutory appeal, but also a statement that is more closely aligned with House v The King than correctness.

That is the only other material that we can find that would assist the Court in reaching a conclusion as to whether – in relation to section 137 in particular or the Act in the appellate provisions – sorry, the interlocutory provisions in general would be dealt with on a House v The King basis or on the basis of correctness.

We accept that the Court of Appeal in an interlocutory appeal is proceeding by way of rehearing – I do not think there is any particular argument about that point – but what we submit is that that in itself does not necessarily set the standard of review that a court should apply in relation to an interlocutory appeal. I have referred there in paragraph 5 of our outline to, in particular, the case of SZVFW, and a reference from the learned Chief Justice and also from Justice Edelman.

What we submit is that just because this is a 137 case does not mean that that necessarily determines the standard of appellate review on an interlocutory appeal. One has to look at what the nature of this is. I have dealt with some of these matters, but our submission is that, firstly, an interlocutory appeal is one that supports the – not entirely a House v The King principle but a principle of judicial restraint that comes from House v The King in the sense that it gives deference to the findings and the ruling of the trial judge.

In circumstances where one is at that stage where there has been no trial, there has obviously been a ruling about evidence, our submission is that, when one looks at the nature of an interlocutory appeal, it is one that supports the House v The King principles being applied in that scenario.

GAGELER CJ: Across the board is your submission, is it?

MR KISSANE: Firstly, across the board. In other words, the position that was developed by the Victorian Court of Appeal in McCartney v The Queen ‑ ‑ ‑

GAGELER CJ: Irrespective of the nature of the underlying decision, it will be a House v The King ‑ ‑ ‑

MR KISSANE: Yes, first submission, across the board. Second submission is that when one looks at the nature of the underlying decision, if the Court is against us on that first submission, then there are a number of decisions that are obviously discretionary. There are decisions that have features of discretion but are often referred to as evaluative. Our submission would be that it becomes a question of where to draw the line, but we say the line is best drawn at not the point where 137 joins the question of permanent stays, but at that permanent stay point.

GAGELER CJ: Let me understand this. You accept that a decision under section 137 is either right or wrong.

MR KISSANE: Yes, yes.

GAGELER CJ: And you accept it that on the appeal from conviction, the question of whether there is an error in the admission of evidence by reference to section 137 is determined by whether or not the decision is right or wrong from the perspective of the appeal book.

MR KISSANE: Yes, yes. I mean, the way that it has been developed in Victoria, if it was a conviction appeal – and say it was not a 137 decision, but say it was a section 65 decision, as to the admissibility of statements where the witness is unavailable, then we would say that on a conviction appeal, that would be dealt with not as a House v The King proposition but on the correctness test. The advantage of that is that it avoids – perhaps if I go back a step. One of the reasons why the correctness test, as I understand it, is said to be preferred to House v The King is that it avoids a situation where an appellate court is uncomfortable about the decision, but feels that it was open to the trial judge, and feels bound by it, so the appellate court can go ahead and make the correct decision.

In Victoria, that would apply to discretionary decisions in the same way that it said that it ought apply to, or that it does apply to, decisions such as those under 137. The line that the Victorian court has drawn has not been one between those decisions that require a right and wrong, that demand one answer, if I can put it that way. The distinction as being between looking at the nature of the appeal, and if the appeal was a final appeal, then even if it, for example, relates to only the admission of evidence under section 97, then in dealing with a final appeal, the Victorian Court of Appeal would look to see whether that was correct.

EDELMAN J: Part of the difficulty here is the language that is being used, particularly language like “discretion”, which, on one view, and in some explanations of the language, would extend even to areas where there are what are sometimes described as constructional choices in interpretation of legislation. If one were to try to cut through that, and deal with – I think in your submissions you refer to it as appellate restraint as the type of test that is being applied by the appellate court, and were to say, appellate restraint would not, I think, on anyone’s view, apply in cases of statutory interpretation questions, but it would, on anyone’s view, apply in cases of questions about an adjournment application, why would that not simply be the only question that is applied, therefore, in this circumstance, a question that will depend upon the nature of the issue before the appellate court? In other words, whether the appellate court exercises appellate restraint depends on whether the issue is one like one of statutory interpretation, or one that is like one of an adjournment application.

MR KISSANE: And that is potentially a way of cutting through the problem that has developed in the sense that there is a distinction between those cases that are said to be true discretion and those that are not. It may be that a better way of looking at it is to look at the nature of the decision and see whether it is one that requires appellant restraint.

EDELMAN J: So, once you then say that 137, whether it is evaluative or not, at the instance of the initial decision‑maker – if you say that 137 is a decision which is common ground here, that it is one where you do not exercise appellant restraint, then that would have to fall in the same camp as statutory interpretation‑type questions.

MR KISSANE: Yes, but in a sense, it is still covered by the House v The King. If you are dealing with that at an interlocutory stage under the House v The King principle, if it was a question of statutory construction, then that would still elicit a right or wrong answer.

BEECH-JONES J: So, to be clear, your primary position, I think, based on McCartney is, even if the interlocutory decision relates to a question of construction, you apply House v The King. Is that right?

EDELMAN J: If there are constructional choices available, so it is an evaluative decision needs to be made about your statutory construction.

MR KISSANE: Yes, if there is an evaluative choice to be made then you ‑ ‑ ‑

BEECH JONES J: Whatever its nature and kind.

MR KISSANE: Well, it is a simple solution, is it not, your Honour, to the difference between ‑ ‑ ‑

BEECH-JONES J: Well, there is simple and there is simple but, yes, I understand.

GLEESON J: With the constructional choice, the fact that you are applying the correctness standard at the earlier stage rather than the later stage is not going to affect the result, whereas, at least in some cases, you seem to be saying that the question of admissibility might be resolved with a greater degree of integrity on the correctness standard following the trial.

MR KISSANE: So, it is certainly saying that, your Honour, that following a trial, you have a complete record of what is said at the trial, so then you can deal with the correctness standard, but on an interlocutory appeal you do not have that complete record.

GLEESON J: Which may or may not matter depending on the admissibility question.

MR KISSANE: Well, you may or may not have it – I mean, it may end up that you have a complete record. Generally speaking, it is perhaps impossible to know. It is perhaps more certain here than in other cases.

GAGELER CJ: Mr Kissane, I understand your primary position in an interlocutory appeal and it a House v The King standard of review that applies. Can you articulate your fallback position, if there is one?

MR KISSANE: Well, the fallback position would be that one has to look at the nature of the decision. So, for example, if it is a 137 decision, which is a decision that, whilst it is described as evaluative, is said to elicit but one answer, then those matters – the correctness standard would apply to, but to those that are truly discretionary, then there would be a House v The King ‑ ‑ ‑

GAGELER CJ: So, the bottom line is, your fallback position is if you are not right on your primary position, you lose.

MR KISSANE: Well, not in the – well, maybe not the appeal. We can come to the substance of the appeal, but ‑ ‑ ‑

GAGELER CJ: Yes, but this ground. On this ground.

MR KISSANE: ‑ ‑ ‑ on this argument ‑ ‑ ‑

GAGELER CJ: Yes.

EDELMAN J: Your fallback position is the appellant’s position, is it not?

MR KISSANE: Yes. I mean, when one looks at the way this has developed in New South Wales, there are a number of cases that have dealt with both interlocutory appeals and final appeals where it is – one of the cases that comes up from time to time – one of the areas is section 138, which is slightly different from 137, but in New South Wales, the cases seem to have gone from, at times, the House v The King standard in relation to a final appeal to a correctness standard, and then in relation to an interlocutory appeal they have gone from a correctness standard at times to a House v The King standard.

What we submit is that the way the Victorian Court of Appeal has dealt with it, without making a distinction between the type of case that is before it, by having a different standard in relation to interlocutory appeals, has avoided all of those problems that have arisen in New South Wales in terms of deciding whether on a final appeal it is House v The King or on a final appeal it is the correctness test.

So, in R v Riley, which is at joint book of authorities volume 6, tab 39, it was an interlocutory appeal. Interestingly, the DPP argued in that case that it ought be the correctness test. What often happens in these appeals – and, of course, I am here as a contradictor – is that whoever is unsuccessful at first instance wants the correctness test, and whoever is successful at first instance wants the House v The King test because they want due deference to be given to the judge. When one looks at the set of authorities it comes through that whoever actually is in the position of not succeeding in front of the trial judge wants the particular test, and the reverse can be said for those that do succeed. So, when one looks at the New South Wales cases there is an element of that that actually comes through.

BEECH-JONES J: One difference with the New South Wales cases and this case is that the 5F appeal is brought by the Crown, there is no leave requirement.

MR KISSANE: Yes.

BEECH-JONES J: It is a right of appeal.

MR KISSANE: Yes. And whilst there is a leave requirement for the Crown here, the other difference is that in New South Wales there is a restriction in relation to evidentiary appeals from accused persons.

BEECH-JONES J: By the accused.

MR KISSANE: Whereas in Victoria – again, this is discussed in the guide that I referred to, but in Victoria the accused can bring – as this accused has – an interlocutory appeal on an evidentiary matter against conviction. So, in that sense, the appeal provisions in Victoria are broader than they are in New South Wales.

In Riley, the DPP argued for correctness test on an interlocutory appeal and the Court of Appeal there did not express a concluded view about it. In Mann v The King, which was a conviction appeal again, the issue arose, and again the Court of Appeal in New South Wales did not express a view although both parties there argued for the correctness test.

GAGELER CJ: Was that a section 137 case?

MR KISSANE: I think it was a 138 case, your Honour, yes. And then the question, I think, was dealt with on a conviction appeal in Rogerson, which I think Justice Beech‑Jones was actually involved in, where the court held a correctness test applied. But that, as I have said, has not always been followed in New South Wales.

In Victoria what seems to have happened since GLJ is that the court has started doing what it did in this case and started looking at both House v The King because it was bound to do so because of the five‑member Bench, but also, as we submit occurred here, looked at the correctness test, having taken – I suppose it was a civil case, but – the strong hint from this Court that in relation to permanent stay there was again but one answer. So, the court in Victoria started in effect looking at both whether House v The King applied and whether the correctness test applied and, as I have indicated, if the Court does deal with the correctness test, then it is in effect dealing with House v The King. No one would suggest that a correctness test would – something would pass or fail the correctness test but not pass or fail House v The King. The Court of Appeal has started doing that ‑ ‑ ‑

EDELMAN J: That is what you say they did at 188?

MR KISSANE: That is what we say they did at 188. They did it earlier in the decision in dealing with section 65 as well. They said that they found in relation to section 65, that the decision of the trial judge was open, but they also found that the decision of the trial judge was correct, so our submission is that it is the case that the court in this case did deal with both section 65 and section 137 on both tests of openness and correctness.

There have been some decisions in relation to a permanent stay there in our submissions where the court has dealt with them on a correctness test, and again, although GLJ was a civil case, the reasoning in that, I do not think it can be denied, would apply to a criminal case. It is a decision that both elicits one answer, and is one that is a rare and exceptional order to make.

If there is one final argument that I can put as to why section 137 ought to have the House v The King test rather than a correctness test, it is a distinction between 137 and a decision on a permanent stay application. Does one draw the line, as the appellant submits, prior to 137, or does one draw it between 137 and a permanent stay application?

Our submission is that it ought be drawn that permanent stays are in a particular category, and that this Court has held that consideration of that should not be by an appellate court; should not be on the House standard. Is that where the line lies, as opposed to when one is dealing with questions of evidence, and one has different tests under 101, 135 and 137? Is it better to have one standard, in relation to an interlocutory review, of those decisions as opposed to, putting to one side, permanent stays, or does the line come back to 137, for example?

Does that mean that the Court of Appeal in this case ought to have dealt with section 65, the question of the admissibility of the statements, on a House v The King test, and then when it comes to 177, on a correctness test? In our submission, when one is dealing with sections of the Evidence Act that are bound up with each other, that those tasks that are said to be evaluative that lead to a single outcome, in our submission, they ought still be dealt with in on a House v The King basis, and the line should be drawn there rather than come back from permanent stay to 137. Then, I suppose you have the issue of 138 which the police in New South Wales seems to agree about, and then you have 101 in relation to tendency.

It is important to remember that when one is dealing with 137, although it is said to be a decision that alludes one answer and is having done the task of weighing up probative value and prejudicial effect; it is bound up in what comes before it. So, 137 is in this case, to some extent, bound up in the decisions that are made in relation to section 65. If one is dealing with 101, it is bound up in relation to the decision that is made in relation to section 97.

So, does one apply a House test to section 97, as some of the New South Wales cases have done even on a final appeal, but a correctness test in relation to section 101? That seems to be the issue from our point of view, bearing in mind that all this Court is called to deal with is the 137 point, but it is going to have ramifications in relation to other decisions and approaches and it should not be assumed that whatever this Court sees in 137 is not going to impact on appellate review of other sections in the Evidence Act.

I am not sure I can say anything further about the question of the standard of review in terms of the second question, which seems to have come down to a question of unfair prejudice, the appellant having accepted that the probative value of the evidence is high. It is our submission, firstly, that this Court did deal with the 137 question on both the openness test – was it reasonable for the judge to reach that conclusion – and the correctness test.

In our submission, when one examines the evidence that is sought to be admitted, it does pass the test of the probative value being greater than the unfair prejudice, bearing in mind that it is unfair prejudice. We accept that there is unfair prejudice, as the Court of Appeal below did accept that there was unfair prejudice in relation to the inability to cross‑examine, but our submission is that that can be ameliorated in a number of ways; it can be ameliorated by judicial directions.

We also note that it can be ameliorated by submissions made about the evidence. We also note that both the trial judge and the Court of Appeal – and this comes through in the Court of Appeal judgment, at page 90 of the core appeal book. There is a list of matters that the Court of Appeal went through, in terms of inability to cross‑examine, and looked at the trial judge’s findings that they were:

either speculative or of low relevance.

So, in our submission, when one is doing the weighing exercise of weighing unfair prejudice against the probative value, the probative value is high in this case, and that is apparent from the issues in the trial. The issue being the identity of the accused, or the principal issue being the identity of the accused. The probative value of those statements is high, and, in our submission, the unfair prejudice that arises from the inability to cross‑examine does not get the appellant anywhere near to the point where this Court ought to say that the test requires that the evidence be excluded as a matter of correctness, if that is the test that the Court ultimately comes to, bearing in mind that the Court of Appeal in this case dealt with it seemingly on both the House standard, as it was bound to do, and the correctness standard.

Inconsistencies that exist of matters that can be explored in front of the jury: there will be at least some witnesses called in the trial, including the mother. There are the recordings – the 000 recording, the body‑worn camera recording – inconsistencies are matters that can be dealt with in the trial and are not matters that, in our submission, raise unfair prejudice to such a level that this Court, on whatever test it applies, would be required to exclude the evidence.

Of course, the trial judge then can give directions about it in terms of forensic disadvantage, and our submission is that those directions are irrelevant when one is weighing up the probative value against the unfair prejudice. The fact that there can be directions – which, again, we do not have at this point of consideration – is something that is relevant in considering unfair prejudice.

Ultimately, our submission is that when one is weighing the probative value, which we say is high, against the unfair prejudice, one can look at the way the whole trial expected to unfold – I suppose, because it has not unfolded yet – and reach the conclusion that the appellant has not succeeded in establishing that it was not correct to exclude the evidence. In one sense, this is one of those rare cases, I suppose, where there is almost an admission in the way the case is put forward that it was open to the trial judge to reach the conclusion that the trial judge did in relation to section 137, but that that is not the correct answer.

EDELMAN J: Can I just ask you one matter about the evidence to which we have been taken, just about the sequence of it. As I understand it – this is from the appellant’s book of further materials – the sequence was that around 10.00 am there is the phone call to the mother and then almost immediately afterwards there is the 000 phone call, in which the appellant says the inconsistent statement was made, referring to her ex‑partner. Then, sometime after that, there is the arrival of the leading senior constable and the paramedics, where, again, there is a reference back to the appellant. How does that timing work? How long after the phone calls is the arrivals?

MR KISSANE: The timing was set out in the Court of Appeal judgment at paragraph 21. That is page 51 of the core appeal book. That sequence of events that your Honour has outlined seems to be correct, that ‑ ‑ ‑

EDELMAN J: In 21(a) there is the identification of the appellant, 21(b) is the inconsistent statement, then 21(c) is the identification of the appellant again.

MR KISSANE: Yes, and then as one goes down there is further identification of the appellant, particularly in the representations in the written statement where it is set out in some detail as to who the offender is alleged to be. In our submission, that says nothing really about the unfair prejudice. That matter of timing was much more relevant to the section 65 issue as to whether he was fresh in the memory, or likely to be reliable.

The Court of Appeal did not even feel it necessary to go beyond “fresh in the memory” given that timeframe of only some hours. I know there are differences of opinion amongst various decisions as to when the “fresh in the memory” is no longer fresh in the memory, if I can put it that way, but certainly the Court of Appeal found that each of the representations was fresh in the memory. To the extent that there are inconsistencies, again, that does not say a great deal about unfair prejudice because, of course, they can be put before a jury.

GAGELER CJ: Mr Kissane, how much longer do you expect to be?

MR KISSANE: I think I am finished, your Honour. Unless there are any further questions.

GAGELER CJ: Thank you. Mr Carr?

MR CARR: Mr Murphy will address the Court in reply, your Honour.

GAGELER CJ: For how long?

MR MURPHY: I will not test your Honours’ patience for longer than five minutes.

GAGELER CJ: Thank you.

MR MURPHY: May it please the Court. Could I start by just giving your Honours a reference that might assist in answering the Chief Justice’s question about the course of authority in Victoria prior to the change of course after DAO.

The course of authority is summarised in Dibbs v The Queen [2012] VSCA 224; [2012] 225 A Crim R 195. It is summarised in particular at paragraphs 78 to 80, in the footnotes to those paragraphs, and your Honours may recall that Dibbs was cited by this Court in Bauer, in footnote 65. It was the only decision concerning the interlocutory appeal in footnote 65.

BEECH‑JONES J: Mr Murphy, was that volume 212?

MR MURPHY: Volume 225.

BEECH‑JONES J: Volume 225. Thank you.

MR MURPHY: Medium neutral citation, [2012] VSCA 224. Then, I just have two submissions to make on the standard review and one point to make about the timing. The first submission on the standard review is responsive to the submission that the facts may change. Conviction appeal, essentially, as we understand the submission, allows for a more informed assessment of the effect of and the correctness of – or we would say the effect of – an interlocutory decision, and your Honour Justice Gleeson asked a question, or paraphrased that as a submission that there is really greater integrity in making the decision at that time, on that more informed basis.

Apart from noting your Honour Justice Edelman’s point that in a lot of cases – perhaps not a lot of cases but in some cases – the evidence will not change, we would also just make this point that not all cases will reach a conviction appeal. There are at least three examples. If an admissibility ruling excludes evidence sought to be led by the Crown that would eliminate or substantially weaken the Crown case, which is anticipated by the statute to be exactly the interlocutory decision that would be subject to an interlocutory appeal, and that decision is not analysed on the House basis and found to be open, the Crown would file a nolle prosequi and it would not get to an appeal because the Crown does not have a right of appeal; they would not run the trial to an equivalent appeal.

The second circumstance – perhaps not as powerful – in which a potential deficiency in an interlocutory decision that is not picked up on the House standard will never be able to be dealt with on a final appeal is where the accused on the strength of a ruling, admitting evidence against them on the House standard, decides to plead guilty. The accused there is confronted there with an invidious choice. If they believe that on the correctness standard they might succeed in showing error in that interlocutory decision, they would have to essentially run the trial in order to get the benefit of that. Your Honours might think it is something of an unfair pressure on an accused to have that sort of decision inform their assessment of whether to enter a plea of guilty instead of going through that taxing course.

The final example of where an interlocutory decision attended by these deficiencies that might not be picked up on the House standard – might not go further – is the decision to order a permanent stay, and it seems to be accepted on the strength of recent Victorian authority that, at least in that case, the correctness standard would apply on an interlocutory appeal. The second of the submissions, in response to the submissions on the standard of review, is to try to deal with paragraph 188 of the judgment, which Justice Edelman raised in chief and my learned friend has relied upon.

The appellant makes two submissions about 188. The first is prefaced by the fact we have not heard contradicted the Court of Appeal appeared to understand section 137 – that is, the decision or the power that the primary judge was exercising – as discretionary. One sees that in paragraph 4(b), paragraph 31 and paragraph 52 of the Court of Appeal’s reasons, and our submission is that that is a misunderstanding of the power, a misunderstanding of the statutory power.

If the Court of Appeal – all that the Court of Appeal could have been doing in 188 therefore, we say, is submitting that on that incorrect understanding they would have exercised the power in a particular way, they themselves if they were called upon to exercise it. If that is an expression of a conclusion based on what we say is a fundamental misunderstanding of the power, in our submission, it cannot hold the judgment. It cannot be sufficient to supply the alternative foundation for the orders. That is why the first reason, we say, is better understood in the way that my learned leader articulated as based upon that misunderstanding and situating ‑ ‑ ‑

GLEESON J: They do not acknowledge at any point that the correctness standard would apply on a conviction appeal, am I right?

MR MURPHY: I think that is right, your Honour. The only other point to note about the way that that conclusion is expressed, in very summary terms, is that it follows from paragraph 187, where their Honours are careful to say that the conclusion there, on the House standard – the conclusion in 187 is reached:

bearing in mind the role of an appellate court on an interlocutory appeal –

We would urge your Honours to read that as showing that the dispositive reasoning is informed by the standard and thus error in the standard depreciates the judgment. I think I have ‑ ‑ ‑

GAGELER CJ: The fourth of your three points?

MR MURPHY: I beg your pardon, there is one more and then a timing point. Our learned friends cannot claim to be taken by surprise because this was in our special leave application, and perhaps it is what convinced your Honours that this whole exercise was not rendered academic by paragraph 188.

The submission is that there are examples of the Court of Appeal using the word “correct” to express a conclusion that there has been no House v The King error. We gave a citation in the special leave application and I will give to your Honours now. It is Matthews (a pseudonym) v The King [2023] VSCA 229, at paragraph 56, and there is some commonality in the composition of that Bench; two of the same members that determine this case, if that means anything.

BEECH‑JONES J: What was that paragraph again, sorry?

MR MURPHY: Paragraph 56, your Honour.

BEECH‑JONES J: Paragraph 56, thank you.

MR MURPHY: The final point is just to make sure that your Honours have all the information that you need to assist you on the timing, which was a question that Justice Edelman raised. The timing, as was mentioned, is summarised at paragraph 21 of the Court of Appeal’s judgment, but it is also given more context and more content at paragraph 16, which makes clear that the first attendance is with the person and the discussion occurs with the person with the pseudonym Paula Thomas, the neighbour, and there is that withholding of information as to the identity of the assailant. The significance of that was addressed in chief by my learned leader.

The only other point of clarification about the timing is that 21(a) refers to the representations being made at 11.30 am, but if one goes to the Court of Appeal’s judgment at 90 it is made clear that the prosecutor at trial accepted that that could not be said with precision, and it could be anywhere between 11.30 and 12.20 pm, somewhat extending the period that was described as a period where the liberation, reflection, and concoction might have been available. Those are our submissions.

GAGELER CJ: Thank you, Mr Murphy. The Court will consider its decision in this matter, and will adjourn until 10.00 am on Wednesday, 12 June.

AT 12.57 PM THE MATTER WAS ADJOURNED